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There is no formal "legal separation" in Virginia. In other words, you do not have to go to court to be separated. You simply separate. However, before you do so, there are lots of factors for you to consider and the actions you take at this time could have long lasting ramifications in future legal proceedings. You are strongly advised to consult with a divorce attorney BEFORE you decide to separate. When I have a prospective client in this situation I usually offer them a low cost consultation so that they can be advised of all of the traps for the unwary. Before the parties separate, or soon thereafter, is often the best time to enter into a property settlement agreement. This agreement will control custody, visitation, support, and division of the marital property. One of the benefits of the Agreement is that you and your spouse control the terms. If a property settlement agreement is entered into quickly, the process of separation usually goes smoothly and all that is left is for the days of the calendar to pass until it is time to file for divorce.

Is separation possible if no one leaves the house? One of the highest hurdles to clear in seeking an uncontested divorce is the fact that the parties are required to live separate and apart, continuously and without interruption for 1 year or six months (no children, with property settlement agreement) before they can file for divorce. While many potential ex-spouses would love to move out as soon as possible, sometimes the economic reality is that neither party can afford to move out on their own and there are no close family or friends where they can set up camp for a few months. In recent years, the Virginia Supreme Court, has addressed this problem and has approved some divorces on the grounds of living separate and apart while the parties still lived under the same roof. For these divorces to be successful, the evidence must show that for all intents and purposes they co-existed as nothing more than roommates. They were not sexually intimate; they didn’t eat each other’s food; they did not cook together; they did not clean up after each other; they don’t buy each other gifts; and they let everyone know that they are separated. If you think you want to proceed on this basis, by all means spend an hour with a local divorce attorney that can guide you through the process.